Rental Agreement

MuscleGun Rental Agreement

PLEASE READ THIS AGREEMENT CAREFULLY. IT SETS FORTH THE LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE SERVICE.

In consideration of Your use of any of the MuscleGun Services (defined below) provided by MuscleGun, Inc. d/b/a MuscleGun (“MuscleGun”), MuscleGun requires that You (“Renter,” “You,” or “Your”) (acting for all of Renter’s family, heirs, agents, affiliates, representatives, successors, and assigns) agree to all terms and conditions in this MuscleGun Rental Agreement, Waiver of Liability and Release (“Agreement”).

The services provided by MuscleGun include, among other things, (1) MuscleGun mobile application (“MuscleGun App”) and related website, (2) MuscleGun Electric MuscleGuns (“MuscleGun” or “MuscleGuns”), and (3) all other related equipment, personnel, services, applications, websites, and information provided or made available by MuscleGun (collectively, the “MuscleGun Services”).

In addition to the Terms of Service, located at https://www.MuscleGun.co/terms, You expressly agreed to when you signed up for MuscleGun, You should CAREFULLY READ all terms and conditions before entering into this Agreement. Here is a partial list of some of the terms that MuscleGun wants to bring to Your initial attention in the event You are on a smartphone or other device with a small screen. Capitalized terms have the meanings given to them where defined in this Agreement.

  • THIS AGREEMENT CONTAINS RELEASES, DISCLAIMERS, ASSUMPTION-OF-RISK PROVISIONS, AND A BINDING ARBITRATION AGREEMENT THAT MAY LIMIT YOUR LEGAL RIGHTS AND REMEDIES. FOR MORE DETAILS, PLEASE REFER TO SECTIONS 9 AND 15 BELOW
  • You must end your operate on the MuscleGun App at the conclusion of the operate. If you fail to do so, You will continue to be charged. For more details, please refer to Section 2.3 below.
  • You must promptly report any damaged or malfunctioning MuscleGuns to MuscleGun via the MuscleGun App or e-mail.

MuscleGun expressly agrees to let, and the Renter expressly agrees to take on, rental of the MuscleGun subject to the terms and conditions set out herein. Unless otherwise indicated, all monetary values set forth in this Agreement shall be deemed to be denominated in United States dollars.

1. GENERAL RENTAL AND USE OF MUSCLEGUN.

1.1 Renter is Sole User. MuscleGun and the Renter are the only parties to this Agreement. The Renter is the sole renter and is solely responsible for compliance with all terms and conditions contained herein. You understand that when You activate a MuscleGun from the location, the MuscleGun must be used only by You. You must not allow others to use a MuscleGun that You have activated from the location.

1.2 Renter is At Least 14 Years Old. Renter represents and certifies that Renter is at least 14 years old.

1.3 Renter is a Competent MuscleGun Operator. Renter represents and certifies that he/she is familiar with the operation of the MuscleGun, is reasonably competent and physically fit to operate the MuscleGun, and has reviewed the safety materials provided in the MuscleGun App and/or MuscleGun’s website. By choosing to operate a MuscleGun, Renter assumes all responsibilities and risks for any injuries or medical conditions.

1.4 MuscleGun is the Exclusive Property of MuscleGun. Renter agrees that the MuscleGun and any MuscleGun equipment attached thereto, at all times, remain the exclusive property of MuscleGun. You must not dismantle, write on, or otherwise modify, repair or deface a MuscleGun, any part of a MuscleGun, or other MuscleGun equipment in any way. You must not write on, peel, or otherwise modify or deface any sticker on a MuscleGun in any way. You must not use a MuscleGun, or other MuscleGun equipment, for any advertising or other commercial purpose without the express written permission of MuscleGun.

1.5 MuscleGun Operating Hours and MuscleGun Availability. Renter agrees and acknowledges that the MuscleGuns are not available 24 hours a day, 7 days/week, 365 days per year. MuscleGuns must be rented during operating hours and within the maximum rental time limits set forth below. The number of MuscleGuns are limited and MuscleGun availability is never guaranteed. Renter agrees that MuscleGun may require Renter to return a MuscleGun at any time.

1.6 Operating Area. Renter agrees not to use, operate, and/or operate the MuscleGun in any no-operate zone and further agrees not to transport the MuscleGun outside of permitted service areas.

1.7 Prohibited Acts. Renter agrees to the following:

  • MuscleGun recommends against operation of a MuscleGun if pregnant, or have a medical condition like epilepsy.
  • DO NOT use on head or neck above C7 vertibrae (base of neck; top of shoulders),
  • Do not use on major arteries, open wounds, delicate / sensitive areas, private parts, or blood clots.
  • You must not operate a MuscleGun while under the influence of any alcohol, drugs, medication, or other substance that may impair Your ability to operate a MuscleGun safely.
  • You may only use locking mechanisms provided by MuscleGun. You may not add another lock to the MuscleGun or lock a MuscleGun other than in accordance with MuscleGun’s instructions.

1.8 MuscleGun is Intended for Only Limited Types of Use. Renter agrees that he/she will not use the MuscleGun recklessly. Renter agrees that he/she will not operate and/or use the MuscleGun as a nuisance to others. Renter agrees that he/she will not use the MuscleGun for hire or reward, nor use it in violation of any law, ordinance or regulation.

1.9 No Tampering; No Unauthorized Use. You must not tamper with, attempt to gain unauthorized access to, or otherwise use the MuscleGun Services other than as specified in this Agreement.

1.10 Reporting of Damage Renter must report any damage, personal injury safety violation, or stolen or lost MuscleGun to MuscleGun as soon as possible. If involves personal injury, property damage, or a stolen MuscleGun, Renter shall file a report with the local police department within 24 hours. Renter agrees that he/she is responsible and liable for any misuse, consequences, claims, demands, causes of action, losses, liabilities, damages, injuries, costs and expenses, penalties, attorney’s fees, judgments, suits or disbursements of any kind or nature whatsoever related to a stolen or lost MuscleGun.

  • YOUR AUTOMOTIVE INSURANCE POLICIES MAY NOT PROVIDE COVERAGE FOR ACCIDENTS INVOLVING OR DAMAGE TO THIS MUSCLEGUN. TO DETERMINE IF COVERAGE IS PROVIDED, YOU SHOULD CONTACT YOUR AUTOMOTIVE INSURANCE COMPANY OR AGENT

Renter agrees that safety violations and related citations, fines or impound charges are at the risk and expense of the Renter, including in connection with improper or unauthorized parking at the end of the rental period.

Renter agrees and acknowledges that MuscleGun may cooperate with law enforcement to provide any information necessary as they may request or may otherwise be required.

1.12 Renter Responsibility for MuscleGun Use and Damage. Renter agrees to return the MuscleGun to MuscleGun in the same condition in which it was rented. Renter will not be responsible for normal wear and tear.

1.13 Electric MuscleGun. The MuscleGun is an electric MuscleGun that requires periodic charging of its battery in order to operate. Renter agrees to use and operate the MuscleGun safely and prudently in light of the MuscleGun being an electric MuscleGun and all of the limitations and requirements associated therewith. Renter understands and agrees with each of the following:

  • The level of charge power remaining in the MuscleGun will decrease with use of the MuscleGun (over both time and distance), and that as the level of charge power of the MuscleGun decreases, the speed and other operational capabilities of the MuscleGun may decrease (or cease in their entirety).
  • The level of charging power in the MuscleGun at the time Renter initiates the rental or operation of the MuscleGun is not guaranteed and will vary with each rental use.
  • The rate of loss of charging power during the use of the MuscleGun is not guaranteed and will vary based on the location and model of MuscleGun.
  • It is Renter’s responsibility to check the level of charge power in the MuscleGun and to ensure that it is adequate before initiating operation of the MuscleGun.
  • The distance and/or time that Renter may operate the MuscleGun before it loses charging power is never guaranteed.
  • The MuscleGun may run out of charging power and cease to operate at any time during Renter’s rental of the MuscleGun.

1.15 No Charging of MuscleGun. If the MuscleGun runs out of charging power during a rental, Renter shall conclude the operate in compliance with all terms of this Agreement.

Renter agrees that he/she is responsible and liable for any misuse, consequences, claims, demands, causes of action, losses, liabilities, property or fire or other damages, injuries, costs, and expenses, penalties, attorney’s fees, judgments, suits, or disbursements of any kind or nature whatsoever related to Renter charging or attempting to charge the MuscleGun. By choosing to charge a MuscleGun, Renter assumes full and complete responsibility for all related risks, dangers, and hazards, and Renter agrees that MuscleGun and all other Released Persons (defined below in Section 15) are not responsible for any injury, damage, or cost caused by Renter with respect to any person or property, including the MuscleGun itself, directly or indirectly related to the charging of the MuscleGun.

1.16 Mobile Device Requirements and Active Internet Connection. Unless otherwise instructed by MuscleGun in writing, to activate MuscleGun Services with the MuscleGun App, You must use a smartphone or any other (mobile) device that meets the technical requirements for and is compatible with the MuscleGun App. Certain functions of the MuscleGun App, such as the possibility to register with MuscleGun, to unlock, rent and end the rental of the MuscleGun require that the MuscleGun App has an active network connection. You are responsible for the availability and costs of Your mobile data communication services. You are also responsible for ensuring that Your mobile device has adequate battery capacity. MuscleGun shall not be responsible if You are unable to unlock, use or end the operate of the MuscleGun as a result of lost or interrupted network connection, mobile device malfunction, or depleted battery. You shall remain responsible for and MuscleGun may charge You all costs (including rental fees) incurred until the operate is ended.

2. PAYMENT AND FEES.

2.1 Fees. Renter may use the MuscleGun in accordance with the pricing described in the MuscleGun App, which may include a operate start fee, fees based on distance or time (with time rounded up to the nearest minute), and/or a required minimum fee. Pricing is subject to change. In each case, fees and other charges may be subject to applicable taxes and other local government charges, which may be charged and collected by MuscleGun. MuscleGun will charge the Renter (through credit, or debit card or through another agreed payment method) the amount of the fees as described in this Agreement, including any recurring payment you choose.

2.2 Referral and/or Promotional Codes.

MuscleGun may, in its sole discretion, create referral and/or promotional codes (“Promo Codes”) that may be used for discounts or credits on MuscleGun Services or other features or benefits provided by MuscleGun, subject to any additional terms that MuscleGun establishes. You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, unless expressly permitted by MuscleGun; (iii) may be disabled by MuscleGun at any time for any reason without liability to MuscleGun; (iv) may only be used pursuant to the specific terms that MuscleGun establishes for such Promo Code; (v) are not valid for cash; (vi) may be subject to quantity or value limits; and (vii) may expire prior to your use. MuscleGun reserves the right to withhold or deduct credits or other features or benefits obtained through the use of the referral system or Promo Codes by you or any other user in the event that MuscleGun determines or believes that the use of the referral system or use or redemption of the Promo Code was in error, fraudulent, illegal, or otherwise in violation of this Agreement or specific terms applicable to such Promo Codes.

2.3 Maximum Rental Time and Charges. The maximum rental time is 24 hours. Renter agrees that Renter will deactivate the MuscleGun rental within 24 hours of renting a MuscleGun. Renter may then rent again. Renter agrees that he/she is solely responsible for being aware of the length of any elapsed operate time. The maximum day charge is $100 and is based on a calendar day. After return of the MuscleGun, Renter will be charged the accumulated rental charges, or the maximum day charge, whichever is less.

Rental time will be calculated from the moment of unlocking the MuscleGun through the MuscleGun App until the Renter receives the confirmation through the MuscleGun App that the operate has been ended. If You end the operate incorrectly, this may result in the Operate not being terminated. If the operate is not ended properly, the Operate will continue and the Renter will continue to be charged. If you have technical issues terminating a operate for any reason, You should report this to MuscleGun through the MuscleGun App immediately. Failure to report an issue in terminating a rental may result in continued charges.

MuscleGuns not returned (with the operate concluded) within 48 hours will be considered lost or stolen, and Renter may be charged up to the value of the MuscleGun plus administrative and processing fees. MuscleGun may also charge additional service fees for rentals in excess of 24 hours where the MuscleGun is not lost or stolen.

2.4 Valid Payment Method. To be registered to use the MuscleGun Services, Renter must provide MuscleGun with a valid credit, debit card or prepaid card number and expiration date or other valid payment method information. Renter represents and warrants to MuscleGun that Renter is authorized to use any credit, debit or prepaid card or other payment method information Renter furnishes to MuscleGun. By providing your payment method, You agree that MuscleGun is authorized to charge You for your operate and any other fees incurred by Renter under this Agreement, including all applicable governmental and regulatory charges and applicable sales and other taxes.

When you provide a payment method or in accordance with MuscleGun policies, our system will attempt to verify the information you entered. We do this by processing an authorization hold, which is a standard practice. We do not charge you in connection with this authorization hold. If Your payment method expires and You do not update your information or cancel your account, You authorize us to continue billing, and You will remain responsible for any uncollected amounts. We reserve the right to retry billing all payment method(s) on file after any failed billing attempt. You will remain liable for all such amounts and all costs incurred in connection with the collection of these amounts, including, without limitation, bank overdraft fees, collection agency fees, reasonable attorneys’ fees, and arbitration or court costs.

If You have agreed to make automatic or recurring payments, such payments will continue until you cancel or your account is terminated. You can cancel by following the instructions on the MuscleGun App. If you cancel, You may use any remaining balance on your account but may not be able to continue using MuscleGun Services until you have reauthorized an applicable payment method. MuscleGun may continue to charge your payment method for any additional fees or charges incurred under this Agreement.

2.5 Pick Up Fees. If You are unable to return a MuscleGun to a valid area (i.e. You deactivate the MuscleGun on private property, a locked community, or another unreachable area), and request that the MuscleGun be picked up by MuscleGun staff, MuscleGun, at its sole discretion, may charge You a pick-up fee. If any MuscleGun accessed under Your account is abandoned without notice, You will be responsible for all trip fees until the MuscleGun is recovered and deactivated, plus a service charge to recover the MuscleGun. Fees are subject to change.

3. ADDITIONAL TERMS OF USE.

3.1 Safety Check. Before each use of a MuscleGun, Renter shall conduct a basic safety inspection of the MuscleGun, which includes inspecting the following: (i) sufficient charge more than 2 blue indicator lights turned on; (ii) any sign of damage, unusual or excessive wear, or other open and obvious mechanical problem/maintenance need; (iii) good condition of the frame or massage tips. Renter agrees not to operate the MuscleGun if there are any noticeable issues, and to immediately notify customer service to alert MuscleGun of any problems.

3.2 Lost or Stolen MuscleGun. A MuscleGun may be deemed lost or stolen if (a) the MuscleGun is not returned within 24 consecutive hours, (b) the MuscleGun’s GPS unit is disabled, (c) the MuscleGun is on unauthorized private property, in a locked area, or in any other non-public space for more than ten minutes after a operate ends, (d) the MuscleGun moves more than thirty feet after a rental has ended and MuscleGun believes such movement was not caused by another Renter or authorized third party, or (e) other facts and circumstances that suggest to MuscleGun in its reasonable, good faith determination that a MuscleGun has been lost or stolen. MuscleGun and You agree that the last Renter of a MuscleGun shall be responsible for a lost or stolen MuscleGun unless facts and circumstances suggest otherwise to MuscleGun in its reasonable, good faith determination. If MuscleGun deems a MuscleGun lost or stolen, MuscleGun shall have the authority to take any and all actions it deems appropriate (with respect to the last Renter of a MuscleGun or otherwise), including (without limitation) obtaining restitution and other appropriate compensation and damages and filing a police report with local authorities. Renter agrees the data generated by MuscleGun’s computer is conclusive evidence of the period of use of a MuscleGun by a Renter. Renter agrees to report MuscleGun disappearance or theft to MuscleGun immediately or as soon as possible.

3.3 Limitations on MuscleGun Rental. Renter agrees that MuscleGun is not a common carrier. Alternative means of public and private transportation are available to the general public and to Renter individually, including public buses and rail service, taxis, and pedestrian paths. MuscleGun provides MuscleGuns only as a convenience, and such rental availability is intended to be used only by those persons who are able and qualified to operate a MuscleGun on their own and who have agreed to all terms and conditions of this Agreement.

4. Termination. At any time and from time to time, and without Renter’s consent, MuscleGun may unilaterally terminate Renter’s right to use the MuscleGun Services, in MuscleGun’s sole discretion and without any notice or cause. Renter may terminate Renter’s use of the MuscleGun Services at any time; provided, however, that (i) no refund will be provided by MuscleGun, (ii) the term of this Agreement continues in accordance with this Agreement, and (iii) Renter may still be charged any applicable additional fees in accordance with this Agreement. This Agreement remains in full force and effect, in accordance with its terms and conditions, after any termination of Renter’s right to use any of the MuscleGun Services, regardless of how the Agreement is terminated.

5. Confidentiality of Information; Privacy Policies. You understand and agree that all personal information that is held by MuscleGun and pertains to Renters, including all names, addresses, phone numbers, email addresses, passwords, payment information, and other information will be kept by MuscleGun in accordance with its privacy policy located at http://muscleguns.com/privacy

6. License to Image and Likeness. For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, You do hereby knowingly, voluntarily, and irrevocably: (1) give Your full and unconditional consent to MuscleGun and its affiliates, successors, and assigns to use at any time and from time to time, without any restriction, Your appearance and voice in photographs, videos, and other recordings related to Your use of the MuscleGun Services, on all websites and for all press, promotional, advertising, publicity, and other commercial purposes, including all formats and media, whether now known or hereafter devised, throughout the world and in perpetuity; (2) grant to MuscleGun and its affiliates, successors, and assigns (a) the right to photograph, videotape, and otherwise record Your appearance and voice related to Your use of the MuscleGun Services, at any time and from time to time, (b) all rights, copyrights, title, and interests in the results of such photographs, videos, and other recordings, as a work for hire for copyright purposes, and (c) the right to use, reproduce, exhibit, distribute, transmit, alter, and exploit, at any time and from time to time and as MuscleGun may decide in its sole discretion, such photographs, videos, and other recordings, or any component thereof, and all related merchandising, promotions, advertising, and publicity; and (3) waive, release, and discharge all Released Persons from all Claims (defined below in Section 15) that You have or may have for any libel, defamation, invasion of privacy, right of publicity, infringement of copyright, or violation of any right granted by You in this paragraph.

7. Notice. MuscleGun may be contacted by emailing hello@MuscleGuns.com or by mail at: 929 Colorado Ave, Santa Monica, CA 90401

 

8. Choice of Law; Dispute Resolution. This Agreement is governed by, and must be construed and enforced in accordance with, the laws of the State of California, excluding principles of conflicts of laws. For every dispute regarding this Agreement: (i) the prevailing party is entitled to its costs, expenses, and reasonable attorney fees (whether incurred at trial, on appeal, or otherwise) incurred in resolving or settling the dispute, in addition to all other damages or awards to which the party may be entitled; (ii) each party consents to the jurisdiction of the courts of the State of California and agrees that those courts have personal jurisdiction over each party; (iii) venue must be in Los Angeles, California.

9. Binding Arbitration and Class Action Waiver

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

9.1 Initial Dispute Resolution. Renter Support is available via the MuscleGun App to address any concerns you may have regarding your use of a MuscleGun and/or this Agreement. The parties shall use their best efforts through this support process to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating mediation, arbitration, or a lawsuit.

9.2 Binding Arbitration

If the parties do not reach an agreed upon solution through the support process, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to use and rental of a MuscleGun, this Agreement, and the parties’ relationship with each other shall be finally settled by binding arbitration administered by JAMS, or alternatively a mutually agreed upon arbitrator or arbitration service, under the applicable commercial arbitration rules for JAMS or the mutually agreed upon arbitration service, excluding any rules or procedures governing or permitting class actions.

The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement, including, but not limited to any claim that all or any part of this Agreement are void or voidable, or whether a claim is subject to arbitration. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written, and binding on the parties and may be entered as a judgment in any court of competent jurisdiction.

To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, MuscleGun will pay the additional cost. The arbitration rules also permit you to recover attorney’s fees in certain cases. The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.

9.3 Location. The arbitration will take place in Los Angeles, California or a mutually agreed upon location.

9.4 Class Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND MUSCLEGUN AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.

9.5 Litigation of Intellectual Property and Small Claims Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.

9.6 Right to Opt Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following address: MuscleGun Inc., 929 Colorado Ave, Santa Monica, CA 90401

. The notice must be sent within 30 days of the effective date or your first use of the Service, whichever is later, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, MuscleGun also will not be bound by them.

9.7 Changes to this Section

MuscleGun will provide prior written notice of any changes to this section. Changes will become effective only after prior written notice and will apply prospectively only to any claims arising after the notice period.

For any dispute not subject to arbitration you and MuscleGun agree to submit to the personal and exclusive jurisdiction of and venue in the federal and state courts located in Los Angeles, California. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available.

10. Waiver and Severability. No waiver of any breach of any provision of this Agreement is a waiver of any other breach or of any other provision of this Agreement. The provisions of this Agreement are independent of and separable from each other, and no provision shall be affected or rendered invalid or unenforceable by virtue of the fact that for any reason any other or others of them may be invalid or unenforceable in whole or in part.

11. Cumulative Remedies. All rights and remedies granted under or referred to in this Agreement are cumulative and nonexclusive, and resort to one does not preclude the availability or applicability of another or to any other right or remedy provided by law.

12. Final Agreement; Modification by MuscleGun. This Agreement contains the complete, final, and exclusive integrated agreement between the parties with respect to its subject matter. This Agreement supersedes all other prior agreements, written or oral, relating to such subject matter. At any time and from time to time, and without Renter’s consent, MuscleGun may unilaterally amend, modify, or change this Agreement, in its sole discretion. By continuing to use any of the MuscleGun Services after any amendment, modification, or change, Renter has agreed to be bound by all such amendments, modifications, and changes. Renter must carefully review this Agreement on a regular basis to maintain awareness of all amendments, modifications, and changes. Whenever a change is made to this Agreement, MuscleGun will post a notification on the Website. The pricing set forth on the Website or MuscleGun App supersedes all pricing set forth in this Agreement.

13. Contract Interpretation. The headings in this Agreement do not affect the interpretation of this Agreement. “Or” is not to be exclusive in its meaning. “Including” means “including, but not limited to.” Unless the context otherwise requires, words in the singular number or in the plural number shall each include the singular number or the plural number. All pronouns include the masculine, feminine, and neuter pronoun forms.

14. Voluntary Execution of this Agreement. This Agreement is entered into voluntarily, with consideration, and without any duress or undue influence on the part or behalf of MuscleGun. Renter acknowledges that he/she (a) has read this Agreement; (b) understands the terms and consequences of this Agreement, including the releases it contains; and (c) is fully aware of the legal and binding effect of this Agreement.

15. RELEASES; DISCLAIMERS; ASSUMPTION OF RISK.

In exchange for Renter being allowed to use MuscleGun Services, MuscleGuns, and other equipment or related information provided by MuscleGun, Renter agrees to fully release, indemnify, and hold harmless MuscleGun and all of its owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, assigns, and to the fullest extent permitted by law any Municipality (including its elected and appointed officials, officers, employees, agents, contractors, and volunteers) in which Renter utilizes MuscleGun Services, and every property owner or operator with whom MuscleGun has contracted to operate MuscleGun Services and all of such parties’ owners, managers, affiliates, employees, contractors, officers, directors, shareholders, agents, representatives, successors, and assigns (collectively, the “Released Persons”) from liability for all “Claims” arising out of or in any way related to Renter’s use of the MuscleGun Services, MuscleGuns, or related equipment, including, but not limited to, those Claims based on Released Persons’ alleged negligence, breach of contract, and/or breach of express or implied warranty, except for Claims based on Released Persons’ gross negligence or willful misconduct. Such released are intended to be general and complete releases of all Claims.

“Claims” means, collectively, any and all claims, injuries, demands, liabilities, disputes, causes of action (including statutory, contract, negligence, or other tort theories), proceedings, obligations, debts, liens, fines, charges, penalties, contracts, promises, costs, expenses (including attorney’s fees, whether incurred at trial, on appeal, or otherwise), damages (including but not limited to, for personal injury, wrongful death, property damage, and injury to renter or to third parties, consequential, compensatory, or punitive damages), or losses (whether known, unknown, asserted, unasserted, fixed, conditional, or contingent) that arise from or relate to (a) any of the MuscleGun Services, including any of the MuscleGuns, placement, equipment, maintenance, related information, this agreement or (b) Renter’s use of any of the foregoing.

To the fullest extent permitted by law, and as to Renter’s use of any of the MuscleGun Services, MuscleGuns, or related equipment, MuscleGun and all other Released Persons disclaim all express and implied warranties, including warranties of merchantability and fitness for a particular purpose. All of the MuscleGun Services, MuscleGuns, and related equipment are provided “as is” and “as available,” and Renter relies on them at Renter’s own risk.

Renter is aware that Renter’s use of any of the MuscleGun Services, MuscleGuns, and related equipment involves obvious and not-so-obvious risks, dangers, and hazards that may result in injury or death to Renter or others and damage to property, and that such risks, dangers, and hazards cannot always be predicted or avoided. Risks, dangers, and hazards, include, but are not limited to:

  • MuscleGuns and other objects;
  • MuscleGun or component malfunction;
  • commission of any of the prohibited acts listed in Section 1.8;
  • failure to perform the required safety check pursuant to Section 3.1;
  • negligent acts or omissions by MuscleGun, any other Released Person, Renter, or third party.

Renter is solely and fully responsible for the safe operation of MuscleGun at all times. Renter agrees that MuscleGuns are machines that may malfunction, even if the MuscleGun is properly maintained and that such malfunction may cause injury. Renter assumes full and complete responsibility for all related risks, dangers, and hazards.

To the fullest extent permitted by law, this release and hold harmless agreement includes any and all Claims related to or arising from the sole or partial negligence of MuscleGun, the Released Parties, any Municipality or any other party. Renter hereby expressly waives any claims against the Released Parties, any Municipality or any other party which Renter does not know or suspect to exist in his or her favor at the time of use of MuscleGun Services, and expressly waives Renter’s rights under any statutes that purport to preserve Renter’s unknown claims.

 


Addendum for Personal Rental Program

The following terms apply with respect to the rental of MuscleGun MuscleGuns under the Personal Rental Program (“Personal Rentals”). With respect to Personal Rentals, the terms of this Addendum shall take priority over any inconsistent or contradictory terms in the Agreement. All other terms of the Agreement shall apply.

1. General. Under the Personal Rentals program, MuscleGun may rent a MuscleGun to You for Your personal use on an extended basis, such as on a weekly or monthly basis. Except as specified in this Addendum, You are responsible for the rented MuscleGun during the entire Personal Rentals period, including safeguarding the MuscleGun at all times, storing the MuscleGun securely overnight and when not in use, and ensuring the MuscleGun has adequate charge for Your use. As a Personal Rental, the MuscleGun shall not be available for rent by other Renters. In addition, you may not use the MuscleGun for commercial purposes without MuscleGun’s consent.

2. Availability. The Personal Rentals program may only be available in select markets and for select time periods, in MuscleGun’s discretion. MuscleGun may suspend or terminate the program at any time.

3. Return After Use.  You shall be responsible for all costs associated with failure to return a MuscleGun at display stand and in the same condition it was delivered to you (ordinary wear and tear excepted), and for any failure to return all other equipment provided to you.

4. Damage to MuscleGuns

a. You should report any damage, malfunction or other functional impairment of the MuscleGun through the MuscleGun App. MuscleGun will review the information you provide and may request additional information. After review, MuscleGun may, in its discretion, offer to swap the MuscleGun for another MuscleGun or request return of the MuscleGun, in which case it will schedule an appropriate drop-off & delivery time with You.

b. MuscleGun reserves the right to charge You for damage to the MuscleGuns caused by you or others (including any vandalism), water damage, or theft, up to the value of the MuscleGun plus administrative and processing fees. You shall not be responsible for ordinary wear and tear incurred in the ordinary use of the MuscleGun.

5. Charging the MuscleGun. Notwithstanding Section 1.15, you are responsible for charging the MuscleGun using a charging cord approved by MuscleGun to ensure the MuscleGun has adequate battery capacity for your intended use. The following provision of Section 1.15 remains in effect:

Renter agrees that he/she is responsible and liable for any misuse, consequences, claims, demands, causes of action, losses, liabilities, property or fire or other damages, injuries, costs, and expenses, penalties, attorney’s fees, judgments, suits, or disbursements of any kind or nature whatsoever related to Renter charging or attempting to charge the MuscleGun. By choosing to charge a MuscleGun, Renter assumes full and complete responsibility for all related risks, dangers, and hazards, and Renter agrees that MuscleGun and all other Released Persons (defined below in Section 15) are not responsible for any injury, damage, or cost caused by Renter with respect to any person or property, including the MuscleGun itself, directly or indirectly related to the charging of the MuscleGun.

6. Fees. Fees for Personal Rentals shall be as specified in the MuscleGun App and are non-refundable. Fees will be charged beginning on the date the MuscleGun is delivered. Fees may continue on a recurring basis until cancelled or otherwise terminated.

7. Maximum Rental Time. Section 2.3 of the Agreement shall not apply to Personal Rentals.

8. Lost or Stolen MuscleGun. Section 3.2 is hereby replaced with this paragraph. A MuscleGun may be deemed lost or stolen if (a) the MuscleGun is not returned upon the expiration of the Personal Rentals term; or (b) MuscleGun otherwise has reasonable basis to believe the MuscleGun may be lost or stolen. If MuscleGun deems a MuscleGun lost or stolen, MuscleGun shall have the authority to take any and all actions it deems appropriate, including (without limitation) obtaining restitution and other appropriate compensation and damages and filing a police report with local authorities. Renter agrees to report MuscleGun disappearance or theft to MuscleGun immediately or as soon as possible.

RENTER ACCEPTANCE OF AGREEMENT

I certify that I have read and expressly agree to the terms and conditions of Section 15 Releases; Disclaimers; Assumption of Risk, and I acknowledge that this section limits my legal rights and remedies. I intend my assent to this Agreement to be a complete and unconditional release of all liability to the greatest extent permitted by law. I represent and certify that I am familiar with the operation of the MuscleGun, and am reasonably competent and physically fit to operate the MuscleGun.

I certify that I am the Renter, I am 14 years old or over, I will operate at my own risk, and I have read and expressly agree to the terms and conditions set forth in this Agreement.